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Charter - Standing. R. v. Brunelle
In R. v. Brunelle (SCC, 2023) the Supreme Court of Canada considered a standing issue where multiple criminal defendants applied for a Charter abuse of process stay [under Charter 24(1)], even where some of them were not directly prejudiced by the alleged Charter breaches:A. Did the Appellants All Have Standing to Apply for a Remedy Under Section 24(1) of the Charter?
[36] The appellants submit that they all have standing to apply for a remedy under s. 24(1) of the Charter because an accused does not need to have suffered a [translation] “directly personal” infringement of a constitutional right in order for their right under s. 7 of the Charter to be infringed as a result of an abuse of process in the residual category (A.F., at para. 27). According to them, this category concerns [translation] “the prejudice caused to the integrity of the justice system and address[es] the situation in which an accused, without being directly targeted by the abusive conduct or affected by the prejudice resulting from it, is nonetheless the subject of a prosecution involving such conduct” (para. 53). In other words, an accused can in some cases [translation] “make an abuse of process claim without having to show that the conduct in question directly affects them” (para. 56). For the purposes of standing, s. 24(1) of the Charter requires only [translation] “that a person be charged, or that their right to life, liberty and security of the person otherwise be jeopardized, in a context where oppressive or vexatious state conduct related to the investigation or court proceedings concerning the person impinges on the integrity of the justice system to such a degree that s. 7 of the Charter is infringed” (para. 72).
[37] The Crown, for its part, argues that in order to have standing to apply for a remedy under s. 24(1), an accused must allege a personal infringement of one of their Charter rights. An accused who applies for a stay of proceedings on the basis of an abuse of process in the residual category must allege an infringement of their s. 7 right. To be able to do so, the accused does not need to have been personally targeted by the abusive state conduct but must be able to show that the conduct in question had a [translation] “sufficient impact” on them (R.F., at para. 72). According to the Crown, the Court of Appeal was therefore correct in stating that the Superior Court judge had erred in failing to look at the situation of each appellant individually, especially with regard to the “implementational” component of the right to counsel. That was the only way to determine whether the abusive conduct had had a sufficient impact on each of them for the purposes of s. 7.
[38] For the reasons that follow, I conclude that all of the appellants had standing to apply for a stay of proceedings under s. 24(1). An accused has standing to apply for a remedy under s. 24(1) where they allege that one of their Charter rights has been infringed. The s. 7 right is one of these rights. It protects accused persons from abuse of process in the residual category. This type of abuse of process occurs where state conduct is unfair or vexatious to such a degree that it contravenes fundamental notions of justice and thus undermines the integrity of the justice system, regardless of its impact on the accused’s other constitutional rights or on the fairness of their trial.
[39] However, this does not mean that every accused will have standing to apply for a remedy under s. 24(1) of the Charter on the basis of any abusive state conduct, no matter what the causal connection between that conduct and the proceedings against them. To have standing, the accused must allege that the abusive conduct tainted the police investigation or operation targeting them or the court proceedings against them. In this case, each of the appellants meets this requirement, since all of them assert that they were directly targeted by the police investigation and operation that resulted in the alleged abusive conduct.
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(2) Standing Under Section 24(1) of the Charter Is Accorded to Accused Persons Alleging That Their Own Rights Have Been Infringed
[43] The starting point in determining whether a person has standing to apply for a remedy under s. 24(1) of the Charter is the text of this provision, which reads as follows:24 (1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances. [44] The Court has interpreted this text and has found it to mean that a person has standing to apply for a remedy under s. 24(1) where the person is “alleging a violation of their own constitutional rights” (R. v. Albashir, 2021 SCC 48, at para. 33; R. v. Ferguson, 2008 SCC 6, [2008] 1 S.C.R. 96, at para. 61; see also R. v. Edwards, 1996 CanLII 255 (SCC), [1996] 1 S.C.R. 128, at para. 55; R. v. Rahey, 1987 CanLII 52 (SCC), [1987] 1 S.C.R. 588, at p. 619; R. v. Big M Drug Mart Ltd., 1985 CanLII 69 (SCC), [1985] 1 S.C.R. 295, at p. 313). In other words, a person’s standing will be considered sufficient only if they are alleging an infringement of any of their Charter rights.
[45] Some decisions have suggested, on the basis of a literal interpretation of the text of s. 24, that an accused has standing to apply for a remedy under this provision and to obtain a judgment on the merits of the application only if the accused establishes that one of their Charter rights has been infringed (see, e.g., Edwards, at para. 45(1.) and (3.)). That interpretation conflates standing to bring proceedings with the merits of a claim (Cromwell, at p. 2; F. Bachand, “Le droit d’agir en justice” (2020), 66 McGill L.J. 109, at pp. 110‑11; K. Roach, Constitutional Remedies in Canada (2nd ed. (loose‑leaf)), at § 5:10). In Finlay, this Court stated that it is essential to distinguish between standing, or the right to seek particular relief, and the entitlement to such relief (p. 635). This distinction was eloquently clarified by Scheibel J. in R.L. Crain Inc. v. Couture (1983), 1983 CanLII 2475 (SK KB), 6 D.L.R. (4th) 478 (Sask. Q.B.):... the establishment of a violation of rights is prerequisite to the obtaining of a remedy. It is not a prerequisite to the commencing of a s. 24(1) application. There should be no doubt that in order to bring a s. 24(1) application it is necessary only that the applicant allege that his rights have been infringed or denied. [Emphasis added; p. 517.] [46] Indeed, the focus when it comes to standing is on the allegations made by the person seeking a remedy under s. 24(1) of the Charter. These allegations must set out the essential elements that will have to be shown in order to establish an infringement of at least one of the applicant’s Charter rights. If they do so, the applicant will have standing to apply for a remedy under s. 24(1).
[47] The Court of Appeal found that standing could be accorded only to the appellants who were alleging an infringement of their own right to retain and instruct counsel without delay or, although the court did not expressly refer to it, their own right to be secure against unreasonable search or seizure (paras. 55 and 59). In other words, it held that the appellants who did not allege that at least one of their rights under s. 8 or 10(b) of the Charter had been infringed did not have standing to apply for a stay of proceedings under s. 24(1) (paras. 58‑59). With respect, I cannot agree with that position, because it disregards the allegation of abuse of process in the residual category.
[48] All of the appellants alleged an infringement of their right under s. 7 of the Charter on the basis of an abuse of process in the residual category (A.R., vol. XI, at pp. 101‑2). It is true that they argued that the abuse resulted from an accumulation of infringements of the right to be secure against unreasonable search or seizure and the right to retain and instruct counsel without delay (A.R., vol. I, at pp. 150, 154‑55 and 158; see also A.R., vol. X, at pp. 55‑56). It is also true that, on the face of the record, some of the appellants could not reasonably allege that they had been the victims of either of these infringements, or possibly even both. However, this did not prevent any appellant from having standing to apply to a court for a stay of proceedings under s. 24(1) of the Charter and to obtain a judgment from the court on the merits of their application if they had duly alleged all the essential elements that had to be shown in order to establish an infringement of their s. 7 right on the basis of an abuse of process in the residual category.
[49] I agree with the appellants that the existence of directly personal prejudice is not one of these essential elements. As will be explained more fully below, this Court has repeatedly recognized that an infringement of s. 7 of the Charter may result solely from the fact that state conduct causes prejudice to the integrity of the justice system, irrespective of whether the conduct had an impact on the other rights of the person alleging it or on the fairness of their trial.
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